Episode 02: You’ve Got Some Gauls

Note: Serial is produced for the ear and designed to be heard, not read. We strongly encourage you to listen to the audio, which includes emotion and emphasis that's not on the page. Transcripts are generated using a combination of speech recognition software and human transcribers, and may contain errors. Please check the corresponding audio before quoting in print.

Officer

Sarah Koenig

First thing I said to myself when I looked at the list of felony judges in Cuyahoga County was, holy cow, that's a lot of Irish names. Well, truthfully, that was the second thing I said. First thing I said was, where are all the Jews? Second thing, so many Irish.

Second to the Irish are the Italians, namely Russo, Russo, Russo, and Russo. Judge John J. Russo, Judge Joseph Russo, Judge Michael Russo, and Judge Nancy Margaret Russo. At the end of the list is Judge Sutula, and her cousin, Judge Sutula. And finally, Judge Synenberg. I know, sounds like my kind of judge. But she's actually Italian, married a Synenberg.

The upshot. In a courthouse where the majority of the defendants is black, out of the 34 felony judges, 32 are white. Two are African American.

Early on in my reporting here, I was on the 19th floor of the Justice Center, and I wandered into the courtroom of Judge Daniel Gaul just in time to hear him sentencing someone. I think it was four years the guy was about to get. I didn't record it, but I took notes.

You're pathetic, the judge was saying, you're pathetic, dude. My father had a saying—I shouldn't say this in court, but I'm going to say it—You're a bullshit artist. You're a criminal and a liar, and you've used the system all your life.

Then the bullshit artist says to Judge Gaul, a liar, a cheater, that's not what I built my life on.

Don't come in here and make these pretty speeches, Judge Gaul says, you've got what's called a mortal character flaw.

The man says, I'm not going to let you down.

I left the courtroom a little wigged out. I had never heard a judge talk to a defendant quite like that, raw and brutal and confusingly intimate, as if these two men were locked in a personal argument rather than a legal one. The man up on the bench, tight and small, acting the enraged parent. The other, chin up but shamed, trying to mollify.

A judge's job here, when it comes to sentencing, is, broadly speaking, to punish the offender and to protect the public. There are sentencing guidelines, of course, spelled out in excruciating detail in the Ohio Revised Code. And I'd assumed the guidelines meant that sentencing was fairly mechanical, a certain kind of charge would produce a certain kind of sentence plus or minus a little wiggly room in the margin to account for special circumstances, or whatever else.

But it's not like that. County judges in Ohio have a lot of leeway in sentencing, a lot of discretion to interpret what punishment consists of, what danger to the public looks like. Leeway, discretion, that's power by another name.

Today's episode, we're going to spend it all in one place, in Judge Gaul's courtroom. And we chose his room—we is our producer Emmanuel Dzotsi and I—because frankly, it's sometimes thrilling in there. The shock factor alone is worth the price of admission, but also because his room, more than any we saw, laid bare this prodigious power that judges hold, and the many ways they can wield that power to try to get what they want.

Emmanuel is going to tell part of today's episode. He actually moved to Cleveland for us, went to the Justice Center almost every day. He'll be reporting some of the series, so you'll hear from him throughout. And hang onto your hats America, Emmanuel went to high school and college in Ohio, but he sounds like an Englishman. Long story. Here's Emmanuel.

Emmanuel Dzotsi

It's been about five months, off and on, watching cases in Judge Gaul's courtroom.

Judge Gaul

Thanks very much. Let's have the record 6117—

Emmanuel Dzotsi

And so I can say with confidence that this is a typical day.

Judge Gaul

Do you have any common sense at all, dude? Why didn't you just pull over?

Emmanuel Dzotsi

Most of what's happening in Judge Gaul's courtroom, in any courtroom, are pleas and sentencings. Trials are the exception. So this one I'm starting with, a sentencing for a 19-year-old I'm going to call Terrell, isn't unusual in any way. Terrell was caught driving a stolen car. He led the police on a chase, he plead guilty about a month earlier, and now he was back in front of Judge Gaul for sentencing.

Judge Gaul

So let's back up for a second here. Please tell me who's in the courtroom. Is that your mother in the far corner to the left?

Terrell

Yes, Judge.

Judge Gaul

Hi. How are you today?

Emmanuel Dzotsi

Terrell's family is sitting back there, which is usually a good thing for a defendant. It's meant to telegraph that there are people who can keep the defendant in line should he or she be released.

Judge Gaul

Who else is here with your mother? His sister?

Sister

I'm his sister.

Judge Gaul

OK, hi. How are you?

Emmanuel Dzotsi

Judge Gaul greets Terrell's sister, and another sister and brother, then turns back to Terrell. Starts to churn out a lecture anyone with better behaved siblings has heard.

Judge Gaul

When you're not in jail, do you live with those fine people?

Terrell

Yes.

Judge Gaul

Well, that's too bad for them, isn't it? Because you then, pretty much, are the bad guy. Your two nice sisters and your nice brother, they don't have these problems, do they?

Terrell

Judge Gaul

Terrell

Judge Gaul

Terrell

Judge Gaul

Terrell

Judge Gaul

You don't know him. Well, you don't know him. He sort of deserted you and the family, yeah? Are your brothers and sisters full brothers and sisters, or stepsisters?

Terrell

Full brothers and sisters.

Judge Gaul

Full brothers and sisters. And your parents divorced when you were five? Is that correct?

Emmanuel Dzotsi

If you're hearing a sharp note of, I don't know, racial stereotyping in Judge Gaul's questions, an assumption on the part of the judge that this black family is rudderless and unstable, that all these kids must be from different, possibly incarcerated fathers, yeah. I'm guessing Terrell hears it, too. I'm quite certain his attorney, John Stanard, hears it. He's standing just behind Terrell at the podium in the middle of the courtroom. He's got one hand at the back of Terrell's neck and the other firmly on Terrell's hip, as though he is physically trying to steer Terrell through this.

Judge Gaul

Terrell

Judge Gaul

Terrell

Judge Gaul

No, you're not. You're in the county jail. And you've been in the county jail how long?

Terrell

Four weeks.

Judge Gaul

How long?

Terrell

For a month.

Judge Gaul

OK. So when I asked you if you're working, you don't work in a county jail. You don't support your child. And you had a baby at what age?

Terrell

18.

Judge Gaul

18. Was that a smart move?

Terrell

No.

Judge Gaul

That was also a bad decision. Right?

Terrell

Yes.

Judge Gaul

All right. So let's see. Let's just review.

Emmanuel Dzotsi

Judge Gaul lists the bad decisions that led Terrell to this moment. And he's not altogether wrong, a lot of bad decisions were in play. Finally, Judge Gaul sentences Terrell to four years of probation. Not a terrible outcome for him, considering Judge Gaul could have given him almost three years in prison.

Judge Gaul explains the terms of Terrell's probation, periodic drug testing, get a job, and he tacks on one last condition. He tells Terrell that if he has another child out of wedlock that he can't support, he will consider that a violation of his probation.

Judge Gaul

Mother, are you with me there?

Mother

I sure am.

Judge Gaul

Thank you. Your mother's talked to you about that. Responsibility. It's a responsibility to the community. I'm not down with you having kids and dumping them cradle to grave on the shoulders of the taxpayer. I know some people don't think that's politically correct, but that's my view. That's my view. And if you demonstrate irresponsibility to this court, I will send you to the penitent—You get a job, and believe me, you're going to pay child support through the Bureau of Support for every child that you have.

Emmanuel Dzotsi

Terrell doesn't say anything. His attorney, John Stanard, thanks Judge Gaul and escorts his client out. No one in the room points out that what Judge Gaul has just threatened to do is unconstitutional. He can't punish Terrell for having a child, not legally, but this is the sort of thing Judge Gaul does. As the day continues, he puts the same condition on two more defendants.

Judge Gaul

You're on probation to me, and you have more kids out of wedlock that you can't afford to pay for, I'm going to send you right back to the institution.

Emmanuel Dzotsi

As far as I know, Judge Gaul has never made good on this. He issues threats all the time, we're going to tap your cell phone, we can test your hair follicles for opiates right now. It's all bluster.

The attorneys know that, and what they also know is that as long as you don't piss him off, Judge Gaul isn't an especially tough sentencer. All of the punishments he handed out on this day were reasonable for this building. He put people on probation whom he could have sent to prison, and the people he did send to prison he said he'd considered giving early release.

So for defendants and their attorneys, the strategy in Judge Gaul's courtroom is, endure whatever he lobs at you, don't challenge him, don't trigger him, and you'll probably come out OK. That's what a defense attorney like John Stanard is trying to convey by squeezing Terrell's shoulders. Just hold on, don't say anything, we're almost there.

Sarah Koenig

Can you see me one second?

Back in his office, Judge Gaul's got souvenirs from Ireland—a lot of the judges have Ireland stuff in their chambers. He's also got one of those putter things.

Judge Gaul

Yes, Sarah.

Sarah Koenig

Hi. There are a lot of golf balls.

Judge Gaul

Yeah, well. You know, if you want—

Sarah Koenig

That'd be funny if I had a slip and fall case from your golf balls.

Judge Gaul

We'd have to get a visiting judge.

Sarah Koenig

Judge Gaul's at home here. He's nestled into the building along with the sons of other prominent Clevelanders. On his floor are two other judges whose fathers were also county judges. Judge Gaul's own father was a Cleveland City Councilman, and later, County Treasurer.

Judge Gaul started out as a defense and civil attorney, and then ran for judge in 1992. County judges are elected in Ohio. He hasn't lost an election since, and there have been four of them. He's known around here as a TV judge, controversially entertaining. The way he talks, the way he reacts instantaneously to stimuli, that's why the cleveland.com reporter sometimes parks himself in Judge Gaul's room on a slow news day. A recent headline, "Woman Convicted in Murder Conspiracy Calls Judge Racist, Gets Life Sentence."

Here's another, "Judge Compares Man Acquitted of Murder Charge to Las Vegas Shooter at Sentencing." Note the word acquitted of murder. In that one, Judge Gaul said that if the defendant had pulled a gun on him, on Judge Gaul, quote, "I would have busted a cap in you," unquote. The defendant's name was DiMagio Callahan. Judge Gaul said he remembered this guy from a previous case, because, quote, "He's got an Italian first name and an Irish last name, and he's a brother."

He'll often call black defendants brother and dude, as in—

Judge Gaul

You got a bit of an attitude going here, brother.

Sarah Koenig

Emmanuel told me that in eight months of watching his courtroom, the only black person he didn't hear Judge Gaul call brother or dude was Emmanuel. He uses terms like Baby's Momma and Baby's Daddy, which impossible for a white guy to do without making the whole room cringe.

He has no truck with political correctness. He's apt to use the term race card. If you throw it down in his courtroom, he says it is not going to work, i.e., "Woman Calls Judge Racist, Gets Life Sentence." He'll work the Black Lives Matter movement into his colloquy as a pun, I guess. His black life didn't matter to you, did it? he'll say, has said, more than once to a black defendant regarding a black victim.

Judge Gaul knows he's blunt, knows he's skirting, not to quibble, but I'd say crossing, various lines, constitutionally, and socially. He says he's been called all the names, misogynist, racist. But he says that is the price he pays for trying to connect with defendants.

Judge Gaul

I have been criticized in the past for maybe using a little slang, or being a little bit too casual sometimes. But I'm talking to a group of people, and I want to speak to them in their idiom, in language that they can understand. Not in legalese, not in footnoted references [INAUDIBLE]. Just hey dude, get real. I really want them to understand me, and understand that I understand them.

Sarah Koenig

He's doing something up there, he says. He's not just a functionary. Say what you will about Judge Gaul's personal views and his manner and his temperament—and I will say many things here—but he is not cynical. He is fundamentally optimistic, in a way, that he can fix what's broken defendant by defendant.

Judge Gaul

And I really think I know these people sometimes better than they know themselves. And I share this information, I confront them. I make them think about their lives.

Sarah Koenig

Every day, Judge Gaul is seeing all these depressing stats made manifest. It's almost always there in the PSIs. He'll see that the defendant's parents were drug addicts or abusive, couldn't or didn't take care of their children, maybe ended up in prison themselves. And now this person, a product of foster care and a Board of Education with kids of his or her own, comes before Judge Gaul having committed a crime, sometimes a horrible crime. It's a rotten family cycle, and Judge Gaul wants to break it. He told Emmanuel that's why he's asking defendants about their children.

Judge Gaul

You ask me why I ask people how many kids they have?

Emmanuel Dzotsi

Yeah. Why go there?

Judge Gaul

Because it should be an issue of social concern. It's not politically correct to ask people how many children they have. Why? I don't know. I think, perhaps, because some people think it disses women. It's not about that. If I believe that most of the people are in here because of abuse, or abandonment, or neglect as a child—and I do—then I want to see to it that there aren't kids that are just born and left by themselves and abandoned.

You know, some people would say, well, you're a misogynist. Wait a second. I'm defending little boys and little girls who are brought into this world and raised in foster care for the rest of their life. What do you think their chance is, Emmanuel? And what percentage of the kids can be born into poverty before we don't have a middle class anymore? Or there's a permanent underclass?

Sarah Koenig

So theory, meet practice.

Judge Gaul

Please tell me you don't have children?

Woman

I do. But I'm not—

Judge Gaul

Whoa.

Sarah Koenig

This woman had pleaded guilty to theft, an incident at a Macy's.

Judge Gaul

You have children? How many?

Woman

Two.

Judge Gaul

OK.

Sarah Koenig

Her lawyer tries to help her out. He explains she has one child and a second on the way.

Judge Gaul

And you're pregnant now? Even better. Wonderful. Who's the first baby's daddy?

Sarah Koenig

Judge Gaul gave her a couple of years probation. This was on a Monday. Over the weekend. Judge Gaul had read an article about the percentage of children born on Medicaid. After the Macy's woman left the courtroom, he started talking about it.

Anybody see the story in the paper about the percentage of children born in this country on Medicaid? Anybody see this?

I don't even want to know, moaned a defense attorney.

New Mexico, I think, leads the country. Seventy-two percent, he told them. And the national average is over 50 percent.

I believe it, said a prosecutor.

We'd hear Judge Gaul cite this statistic from the bench several times as the months went on.

Judge Gaul is one of the most transparent judges in the building. His worldview seemed woven into every proceeding. He liked the old days better, when Cleveland was better, when America was better. When people were more respectful, more resilient, less whiny. Now we're dealing with a generation raised on ADHD medication, which did who knows what to their brain chemistry, and these millennials, nourished on participation trophies, think they're owed something from the rest of us. All of this, this whole building, the 13,000 felony cases moving through the criminal court each year, Judge Gaul traces it to a frightful shortage of personal responsibility.

Sentencing in Ohio, the recent history of it, is similar to what's evolved all over the country. Back in the mid-1990s when we were freaking out about rising violent crime, Ohio, like many states, revamped its sentencing laws. It redefined certain felonies, made some punishments harsher, and got rid of parole for most cases. And I'm going to shamelessly oversimplify for a second, because the reasons why Ohio's prison population climbed are complex—and super interesting, by the way—but just know it did climb, mostly because people began serving longer sentences.

In 1974, Ohio prisons held 10,700 people. By 2011, they held almost 51,000 people, a 400 percent increase. That's expensive. More than a billion and a quarter dollars expensive. So that year, 2011, Ohio, again like other places, swung back the other way. It passed new legislation aimed at unpacking the prisons. It gave judges more options for diverting low-level felons to alternative punishments and broaden the opportunities for probation.

That suits Judge Gaul just fine. He likes probation. He likes lengthy probation.

Judge Gaul

I probably put more people on probation than any other judge in this courthouse.

Sarah Koenig

Really?

Judge Gaul

Because I can always put them in prison later, right? And I keep my eye on them.

Sarah Koenig

Probation gives Judge Gaul ongoing control over people's lives. It's his best hope for getting them to change.

Judge Gaul

And I probably have, at any one time, anywhere between, I don't know. I—you know, a couple of thousand people on probation to me. Fifty percent of people on probation violate.

Sarah Koenig

Probation, what insiders call getting paper rather than time, is what most defendants want. But probation has its own hazards. Probation here is actually called Community Control Sanctions, emphasis on the control, which is why I have heard defendants tell judges they'd rather pay a big fine or just do some jail time and get it over with rather than be on probation.

On probation you're out, but you're not free. You are still tethered to the courthouse. And the conditions of your release can worm their way into almost every aspect of your life. They can dictate who you live with, where you work, whether you can have a beer after work, whether you can go to your uncle's funeral or your niece's wedding. It's so easy to slip up. A dirty urine test, a missed meeting, maybe you get indicted on a new crime, and you're back before Judge Gaul. That's why he's got more cases than most judges in the building, because of all those probation violations.

We watched one violation hearing for a woman named Vivian.

Judge Gaul

I know you quite well. We've talked on five or six occasions now.

Vivian

[INAUDIBLE]

Judge Gaul

Correct? Are you with me?

Vivian

Yes.

Judge Gaul

So I feel like I know you pretty well.

Sarah Koenig

Judge Gaul doesn't know Vivian pretty well, but he knows her specs. She's 29, single, three children. Her youngest is three months old. A couple of years ago in 2015, she pleaded guilty to felony drug possession. She got caught with a small amount of cocaine.

Rather than convict her of the felony, Judge Gaul granted her what's called an ILC, Intervention In Lieu of Conviction. Works sort of like probation. The idea is if Vivian can do everything she's supposed to, her case will go away. The list of requirements is significant, report weekly, undergo drug testing, complete intensive outpatient drug treatment, go to AA meetings, obtain a sponsor, get counseling, get her GED.

She's done everything, except stay clean. A recent drug test showed she'd been using. This is her fifth violation, her sixth time before Judge Gaul.

Judge Gaul

And I'm telling you that you got to deal with the drug problem, or you're going to lose your job, and your children are going to live in poverty.

Sarah Koenig

Judge Gaul takes time with Vivian. For a matter that another judge might have dealt with in five minutes tops, Judge Gaul spends 20 minutes talking to her. That's a dog's age in this building. He spins through the usual jazz about baby's daddies and bad decisions, and the welfare state, Medicaid, New Mexico, 72 percent, but he also seems sincere about trying to help her. He bores into the detail of her schedule, asks about her job. She works nights in the kitchen of a casino for $10 an hour. Bad idea, he tells her. That's exactly the kind of place where you're going to be offered cocaine.

Judge Gaul

You need to stop the second shift work. I think it's setting you up for failure. I do. If you can get up, and get the kids off, and get the kids daycare, and work during the daylight hours, so that you and the children can rest at the same time, you need to get honest—you're working, you're working, you know, 16 hours a day, without the help of anybody.

Sarah Koenig

Three months ago at another violation hearing, Judge Gaul got fed up and sent Vivian to jail for a week to try to scare her straight. That didn't work.

Today, she's desperate not to get locked up. She's worried she'll lose her children. Her comportment is deft. She knows not to beg in here, not to whine. She admits her weakness, flags her strength. She tells him, all on her own, she's enrolled herself in an intensive outpatient drug treatment program, an IOP.

Vivian

I just feel like I should do better, and I can do better. And if you give me an opportunity, I promise to you I will. I know I've done wrong numerous times, but I've enrolled myself into an IOP program without court order, without anybody telling me to do it. I did it on my own.

Sarah Koenig

Vivian's attorney today requests that Judge Gaul transfer Vivian to drug court. Instead of remaining under Judge Gaul's supervision, she'd be put on a specialized docket designed specifically for people like her, people who aren't violent, who don't want to be criminals, but who get in trouble with the law because of their addiction. Over in drug court, they use a therapeutic model. Their question is not, how can we best punish you, it's how can we best help you get better.

One of the drug court judges is Joan Synenberg who has a social work background. Actually, she's the recovery court judge, which is a docket for people struggling with both mental health and drug problems. And it is a different vibe over there. Just really fast, I'm going to show you.

I was with her one day when she popped into that courtroom to say hi.

Judge Synenberg

Hi. How are you? I miss you guys. How are you?

Sarah Koenig

Another judge was substituting for her, because she was tied up on a murder trial. The participants sat in the jury box and on the benches. The atmosphere was casual, warm.

Judge Synenberg

I miss you a lot. Do you miss me, too?

Man

Are we missing her?

[LAUGHTER]

That's what I was going to say. Right?

Judge Synenberg

I love you.

Sarah Koenig

On the way out, Judge Synenberg ran into one of the recovery court participants in the hallway, a guy named Craig, gave him a big hug.

Judge Synenberg

He's amazing. Yeah. You have been, you're one of my inspirations.

Craig

You're amazing. This program is amazing. A little hectic and stressful, but amazing.

Judge Synenberg

I'm so proud of you.

Craig

This whole experience was amazing.

Judge Synenberg

I'm so proud of you.

Craig

Thank you.

Judge Synenberg

You have come so far.

Craig

I know.

Sarah Koenig

Nice right? No one gets torn down in drug court. No one is asked why they're pregnant. I'm not saying it's a cure all. Ohio has been devastated by the opioid crisis. But research shows that programs like these are the best way we've found to help people with drug problems stay out of the criminal justice system.

So Vivian's attorney asks for drug court. And the probation department, which is staffed with substance abuse specialists and social workers, they're well-regarded around here, they're also recommending Vivian for drug court. But Judge Gaul flicks that idea aside.

Judge Gaul

As if drug court is gonna do something different than what we've already done.

Sarah Koenig

It's as if he's saying, I got this. I deal with addiction all day long. Vivian's just got to buckle down, stay the course. She doesn't need drug court, she has me.

Vivian's attorney doesn't push back much on this. He even seems to agree with Judge Gaul, what difference would it make? One difference, in drug court she'd have one defense attorney dedicated to her case who'd follow her progress and update the judge. But this guy is her fifth attorney. Each time she has to appear before Judge Gaul, she's assigned someone new.

First, there was a public defender, Linda Hricko, who negotiated the ILC deal. Since then, it's been assignment list attorneys. There's Charles Morgan, then Jim Hoeflich and Aaron Brockler, he represented her at two hearings, actually. Today, it's Joseph O'Malley. Their goal, all of them, is to keep Vivian out of jail. Other than that, they don't have much of a stake here. They're not thinking too hard about how she progresses with drug treatment or what would work best for her. They're getting paid 100 bucks for this hearing, and the moment it's over, she's not their client anymore.

Today, Judge Gaul ends up putting Vivian on house arrest at her own suggestion. I'm sure Vivian would like this interaction with Judge Gaul to be her last, but, alas, she is midstream. A month from now, she'll be indicted for theft for using a friend's credit card. At another hearing, Judge Gaul will tell Vivian she's out of control, and he'll send her to jail. She'll spend 51 days there while the credit card case gets sorted out. She'll plead guilty to a couple of first degree misdemeanors.

Judge Gaul will tell her she's weak, indulgent, selfish. He'll tell her to quit the tears, sweetheart, and he'll give her a suspended jail sentence, more home detention, plus two years probation. Now, instead of three AA/NA meetings a week, she must go to four a week.

Two months later, she'll violate again. This time, she'll beg for inpatient treatment. She'll tell Judge Gaul her cousin died three weeks ago from an overdose, and she's afraid. I need help, I need help. She'll say it seven times. I need to learn to get through this sickness. You call it a sickness, and I call it a crime, he'll say. He'll send her to jail. Once again, she will leave her three sons, who by this time are nine years old, six years old, and nine months old, with their grandmother.

After Vivian has spent 66 days locked up, her ninth assigned lawyer will write to Judge Gaul asking him to let her out, and Judge Gaul will release Vivian from jail. He'll put her on probation for another year and a half, and now she must attend five AA/NA meetings a week.

Judge Gaul's trying to help Vivian, at least I think he is. But consider. If Vivian had gone to drug court, that new theft charge would have been rolled into her existing case. It would not have affected her status in drug court at all. If she'd been in drug court, it's unlikely she would have spent even one day in the county jail, much less 127 days. If she'd been in drug court and if she was anything like the other drug court participants, almost all of whom backslide and struggle, she would have graduated from that program in about 13 months. As it stands, she has been embroiled with Judge Gaul for three and a half years and counting for fewer than five grams of cocaine.

This is possibly the most profound and least examined question in the building. What works? The court doesn't gather statistics on sentencing, and that's true for most of the country, by the way. No data that says defendants in Cuyahoga County do better after six months of probation than after three years of probation, or, in terms of re-offending, four years in prison yields better results than seven years in prison. We just don't know.

Which I found rather astounding when I realized no one is tracking this. The court keeps extensive data regarding efficiency, how many cases are moving through whose dockets and how quickly, which I'm not knocking efficiency. It's important. It's why people here are generally not waiting years and years for their cases to resolve, and that's good. But there's no database, locally or nationally, that shows what works. So each judge in the building has to muddle it out for him or herself.

Judge Cassandra Collier-Williams put it to me this way, there's 34 judges up here, and it's like 34 different cities. Of course, judges here aren't just winging it, or mostly they're not winging it. They're basing their decisions on the sentencing guidelines and on their professional experience. But they're also making decisions based on their life experience, on where they come from, and who they know, and where they live, and what they read, and what it is they hold dear. Duck into various courtrooms and you feel it right away.

Judge

Mr. Cook, how old are you?

Mr. Cook

22 years old.

Judge Collier

I need you to speak up just a little bit, OK?

Sarah Koenig

That's Judge Collier-Williams on the 23rd floor, taking a plea. A case of felonious assault with a gun. She painstakingly lists for Mr. Cook all the rights he's giving up by not going to trial. With gentleness, she makes double sure he understands what she's saying.

Judge Collier

OK. So what's the total time you're looking at, the possibility?

Mr. Cook

11 years.

Judge Collier

From five to 11 years. Understand?

Mr. Cook

Yes.

Judge Collier

OK.

Sarah Koenig

Finally, she lectures him.

Judge Collier

Thank you. I accept your plea of guilty to count three and find you guilty thereon.

Sarah Koenig

Just kidding. She's done. No muss, no fuss. Though, we have seen her do this.

Judge Collier

You have 30 days to register to vote and show proof of that to your probation officer. And now you are required to vote in all elections. And the reason why I do that—

Sarah Koenig

Is because people died for this right. Judge Collier-Williams wants felons to participate in democracy like everybody else. But she actually stopped doing this ever since the ACLU had a little [CLEARS THROAT] chat with her again. Unconstitutional.

Judge Michael Donnelly on 19, he'll only discuss pleads on the record, no backroom sentencing deals.

Judge Janet Burnside, down on 16, finds she's giving people accused of serious crimes longer and longer prison terms, because she's so struck by the sheer violence she's seeing. But for probation, she swings light. She wants to get people off of court supervision as quickly as possible.

A few years ago, the probation department started using what are called evidence-based practices to determine probation. You ask a bunch of questions to try to figure out a defendant's risk of recidivism, and then tailor the conditions of probation to his or her level of risk. A PowerPoint I saw on the method included a slide that said, quote, "avoid threatening, lecturing, arguing, shaming, or sympathizing." But judges don't have to take the probation department's recommendations. They're optional.

Judge Kathleen Ann Sutula back up on 23 says she uses the evidence-based thing only sometimes. Her philosophy is akin to Judge Gaul's. She told us, short probation, that's throwing a person away. She'll typically give five years probation, super strict conditions. Ninety AA meetings in 90 days, for instance. And if you miss a day, you have to start over. She owns her reputation as a tough judge.

Judge Sutula

Wake up.

Sarah Koenig

Mean would be the tamest thing we heard to describe her. But I've got to say, we didn't see that so much. She was tough, but we didn't get the feeling her toughness was self-serving.

We watched the sentencing of a young guy, 19. He'd stolen a bunch of cars. Other guys were involved, but they didn't get indicted. It was intense. She asked the defendant, you live with your father, so why didn't he pay your bond? Two hundred and fifty bucks and you could have gone home months ago instead of sitting in jail all this time. You know, we called your father. He said he didn't know your address or where you stay.

Judge Sutula

Does that surprise you?

Man

Yes, ma'am.

Sarah Koenig

Yes, ma'am, he whispers.

Judge Sutula

You're standing here all alone. There's no Louis, there's no [? Marques, ?] and even your father doesn't want to stand here with you. Does this tell you something? Do you have any thoughts about this in your head?

Man

Yes, ma'am.

Judge Sutula

What are they? Share them with me.

Man

I've been going down the wrong path.

Judge Sutula

Yeah. Big time.

Sarah Koenig

By the end, they're talking about his future plans. She mentions college.

I don't know. Can one stiff talking to change the trajectory of a teenager's life? I don't know. Maybe.

When I ask judges here, how do you know, how do you know if what you're doing is working? They'd talk about the people who come back just to visit, or who write letters, or whom they see on the street, who say thank you for being hard on me, or thank you for giving me a chance, you helped me. I have my kids back, I'm doing well. Which must be great for a judge to hear, but rigorous evidence it isn't.

For Judge Gaul, I wasn't exactly sure what he needed to see from a defendant in order to declare success until we came upon the case of Rayshawn Ellis. That's after this.

When Judge Gaul sentences someone, the principal thing he's looking for is remorse. Emmanuel and I have heard him say these two phrases dozens of times, acceptance of responsibility, demonstration of remorse.

Judge Gaul

Rehabilitation can't begin until there is some acceptance of responsibility, some candor with the court, some demonstration of remorse. Right?

Sarah Koenig

Acceptance of responsibility, showing remorse. Judge Gaul did not invent these phrases. They come from federal and state sentencing guidelines, and they sound bedrockish, like they're probably chiseled into the courthouse wall someplace.

But in practice, they're controversial. Because acceptance of responsibility or showing genuine remorse, what does that mean? What's that supposed to look like? It's subjective. Some judges will say, well, you plead guilty so that's taking responsibility right there. That's enough for me.

But in Judge Gaul's room, a plea alone, definitely not enough. He needs to hear you say it. Even better, he wants to feel you feeling it. If you do, it's a good bet your sentence will be lighter. If you deflect responsibility or stay mum on the subject, the sentence could be heavier.

The starkest example we saw of this was the sentencing of a guy named Rayshawn Ellis. Rayshawn was 31. He'd been a defendant in many cases, ever since he was a teenager. Some charges he'd beat, some he hadn't. And the year before, he picked up a new case, or caught a new case, is what everyone says, as if it's a virus.

Anyway, Rayshawn caught a new case. Serious charges. Felonious assault, weapons violations. It was a messy incident, but the gist was that a guy shot a gun out the window of Rayshawn's car while Rayshawn was driving, and a fight had broken out. Early on, Judge Gaul made it plain he thought Rayshawn should plead guilty. But Rayshawn said he wasn't the instigator of this debacle, and, what's more, he had tried to de-escalate the situation, to break up the fight. He'd been scared for his own life, he said.

Rayshawn took the case to trial, and he won, mostly. He was acquitted of the most serious charge, felonious assault. But he was convicted on two weapons charges, both of which carry the possibility of prison time. Because of the gun in the car, even though it wasn't Rayshawn's gun, and he didn't fire it, the jury found he was still criminally responsible for it.

Immediately after the verdict, with the jury still sitting there, Judge Gaul launched. Rayshawn, he said, you should have resolved this case a long time ago.

Judge Gaul

You, sir, are going to be looking at the harshest possible penalty. OK? Because I'm not going to put on the street a person that's so dysfunctional and destructive that doesn't understand that he should have resolved this case without risking 23 years on the first count he found him guilty.

Man

Twenty-six.

Judge Gaul

Twenty-six. Right?

Sarah Koenig

I want to pause on this for a second so the perversity of the moment can sink in. Judge Gaul is angry at Rayshawn for refusing to plead guilty, for risking huge prison time on an assault charge for which he has just been acquitted, not guilty. That's what's dysfunctional and destructive, refusing to plead. And that's what makes Rayshawn deserve prison.

A month later, Emanuel went to Rayshawn's sentencing. We were curious to see what he was going to get.

Emmanuel Dzotsi

It was a Monday morning. Rayshawn was one of his first cases of the day, and already Judge Gaul was worked up.

Judge Gaul

You get indicted and you don't admit your responsibility. You don't demonstrate any remorse. You know you're going to go to prison on the probation violation because I've told you that through your attorney. Right? He's going to go.

Emmanuel Dzotsi

Rayshawn had been on probation to Judge Gaul when this new case happened. That's partly why he was pissed. Judge Gaul starts listing arrest after arrest, charge after charge, dropped or not, that Rayshawn faced ever since he was a juvenile. Then he and Rayshawn's attorney, John Mizanin, start relitigating the facts of the current case.

John's exasperated, and not pretend exasperated. You often see attorneys performing an argument, but you don't often see a real one. John is insisting that Rayshawn had tried to do the right thing, to keep the people around him from getting shot. He's getting hot with the judge.

Judge Gaul

What he should have done—

John Mizanin

What was he supposed to do?

[INTERPOSING VOICES]

Emmanuel Dzotsi

This goes on and on. Rayshawn is facing five and a half years on the probation violation alone, never mind the new charges he's just been convicted of, which can add another four and a half years. So ten years total if the judge wants to stick it to him. This fighting is not helping.

Judge Gaul

Emmanuel Dzotsi

Judge Gaul

Your Honor, Judge Gaul, I now understand what you have been trying to communicate to me this whole time. I was wrong, I was wrong for being criminal.

Emmanuel Dzotsi

Later, back in his chambers, Judge Gaul read parts of the letter aloud to me.

Judge Gaul

—wrong for being a criminal. My point of view has been clouded since I was first charged at 16 years old, and I have been angry ever since.

I have finally opened my eyes and saw and came to realize I had been wrong for 15 years. It has humbled me. This experience has helped save my life and awaken me to my self-destructive illusions.

You are an outstanding judge. I'm going to remind you of what you said, that I could be your son, and I'm not assuming that as favoritism. That comment truly touched me and made me look at you different. I originally perceived you to be prejudiced and never expected you to show me your human personal decency. I recognize the wisdom and help you imparted on me, that I was wrong, and you have been trying to reason with me to consider my choice to associate with the criminal lifestyle.

And it goes on and on and on.

Emmanuel Dzotsi

In the courtroom, Rayshawn read his letter for more than seven minutes. When he finished, Judge Gaul was stunned.

Judge Gaul

That's really a tremendous letter. I've been doing this for 35 years, and that's sort of like, uh, the criminal equivalent of the Gettysburg Address.

Emmanuel Dzotsi

He said he wanted to get the letter laminated and read it from time to time, because he found it inspiring.

A visitor to a courtroom, such as myself, might consider Rayshawn's letter a brilliant strategic move, while also wondering whether Judge Gaul had just been played. But Judge Gaul believed the letter was genuine. He was moved. He said to Rayshawn, it's not possible for anyone to fake what you just said. The letter was gratifying for Judge Gaul. Of course it was. But I think it was also, maybe, vindicating for him, because I'd been there to hear it.

I'd also been in the room a few weeks earlier when a defendant had called Judged Gaul racist. Judge Gaul knew I'd been squinting uncomfortably through the harangues and the stereotyping. And now, here was proof. Gaul's method worked.

Judge Gaul was emotional about it afterwards. He mentioned the Bible story about the good thief who was redeemed. He choked up.

Judge Gaul

So there may be some redemption here. He's certainly young enough. And if he changes his attitude, he—he—he may—he may amount to something. He may make it.

Emmanuel Dzotsi

Because of the letter, Rayshawn cut his own sentence roughly in half. Judge Gaul was going to give him six and a half or seven years, he said. Instead, he gave him three. And he told Rayshawn, come back in six months and apply for judicial release, what's known as shock release, a way of cutting someone loose whose learned his lesson after the shock of prison. So six months he said, file a motion, maybe I'll shock you out.

Sarah Koenig

Six months to the day, John Mizanin, Rayshawn's attorney, did file a motion for shock release. Judge Gaul held a hearing, Rayshawn and Mizanin were there. But it lacked the magic of the sentencing. Instead, Judge Gaul trawled Rayshawn's criminal record all over again.

So much prior involvement with the system. Cruelty to animals, that jumps off the page. Anyone that would do that to an animal—Rayshawn pushed back. It wasn't me. I was 14 years old and someone shot a cat on my porch with a BB gun, and I didn't tell. What about the aggravated robbery in 2001? Well, that one, I didn't do it, but I was there. So I got caught.

And then the crime at hand. Judge Gaul accused Rayshawn of knowing about the gun, of putting other people in danger. Rayshawn said, it wasn't like that. Judge Gaul said, why are you minimizing? The Gettysburg Address wasn't echoing in anyone's ears.

Judge Gaul denied Rayshawn's motion for judicial release. I'm denying your motion for shock probation at this time, he said, because you are not accepting responsibility, and therefore you're not demonstrating any remorse. Try again in six months, he told him. See if your attitude has changed.

After it was all over, I talked to Rayshawn about how this whole thing went down. He told me he still hadn't made sense of it. Judge Gaul had all but promised to shock him out if he did well in prison, and he had done well. Six months earlier when he wrote the letter, he said it was partly sincere, partly political. He knew he'd need to stroke Judge Gaul's ego. He behaves like a king, he said.

Rayshawn Ellis

He wants you to, you know, honor him. You know, you can become the jester, and he may think about dropping some crumbs off his table.

Sarah Koenig

But at the hearing for shock release, he figured they were past the stage of flattery and theatrics. So he was taken aback when Judge Gaul started in on the details of his case. Rayshawn said he kept trying to talk to him man to man.

Rayshawn Ellis

I respect you as the individual in the position that you are holding, but, you know, I'm being accused of something, and I need you to be a professional and look at the facts to find out what the evidence is. He just automatically already knew, like, it doesn't matter if you're innocent. I want you guilty. I kept trying to tell him, like, there's something, there's more to this story, and I don't know what you want me to tell you, but that's the honest to God truth.

Sarah Koenig

Rayshawn didn't feel as if Judge Gaul were leading him down the road toward responsibility and redemption. He felt as if Judge Gaul simply wanted submission for its own sake. Rayshawn said Judge Gaul, quote, "struck me as nothing less than a raging slave master."

Rayshawn Ellis

And I just had to let him know in such a nice way without really hurting his feelings too much, like, I ain't that guy. I ain't no slave. I'm not scared of you. And you know, and I was—you know, a lot of times I kept telling him, I don't agree with you. I don't agree with what you're saying. He just didn't like that. So he wanted it his way or no way, and it was just, like, that it's not your way or no—no way.

Sarah Koenig

But it is Judge Gaul's way or no way. That's the maddening corkscrew of Rayshawn's position. Judge Gaul shouldn't require him to grovel. Rayshawn's right about that. But there's nothing Rayshawn can do about it, because Rayshawn is the one who broke the law. Everything Judge Gaul's doing is legal.

If you're wondering, does Judge Gaul ever get in trouble for the way he runs his room? Was he ever reined in? Well, let me tell you about this one last case just quickly.

It was back in 2015, so I wasn't there for it, but I do have a transcript. A guy named Carlton Heard was indicted for shooting. He said he didn't do it. He wanted to go to trial. After being postponed a few times, day of trial finally comes, and Carlton Heard's attorney asks for another continuance, because he said Mr. Heard had just informed him a half hour ago that he's been covering up for the real shooter. So now they need more time to investigate.

Judge Gaul does not take kindly to this motion to continue. He thinks this last minute new evidence claim is bogus. He's sure they're just trying to delay. He does what he does, which is to excoriate Mr. Heard for being black, among other things. Your black life didn't matter to you did it? And, your child's going to grow up, and I'm speculating now, just like you did, without a dad.

Did you have a father?

No, says Carlton Heard.

No, of course not, says Judge Gaul.

But then, even by Judge Gaul's standards, Judge Gaul veers out of bounds.

He says to Carlton Heard, you're either going to go to trial right now, or you're going to plead guilty.

Carlton Heard hadn't asked for a plea deal, and the state had not offered one. No matter. Judge Gaul comes up with his own deal for Carlton Heard.

He says, if you plead no contest to the indictment right now, I'll sentence you to 14 years. Quote, "If you take the case to trial and are convicted, you will do multiples of 14 years. Because if you're convicted of these charges, that's what you deserve. You deserve to spend what could be the rest of your life in the state penal institution," unquote. What's it going to be?

Carlton Heard says, I'll go to trial.

His mom blurts out, no!

Carlton says to her, listen to what he just said. Fourteen years seemed like forever to Carlton. His little daughter would be 18 when he got out. But his mom was hearing the other numbers, multiples of fourteen if he's convicted at trial. They confer for a bit off the record. Then Judge Gaul tells them, at length, about another case he had in which he offered a couple of, quote, "knuckleheads" a deal they didn't take.

I had the same conversation with them I'm having with you. They sat right there right in that chair. I told them, I said, look, you can do 15 years, or if you're convicted of all this other stuff, you're going to get consecutive time. They both got sentenced to 78 years.

Judge Gaul says, look, you want to go to trial. Go to trial. You have a beautiful suit on. You can sit there, and maybe the jury will think you're a great guy and you're not guilty. What do you want to do?

There's a pause.

All right. Let's bring the jury up, Judge Gaul says. The jury is on its way. If they walk into this room, my deal with you is off.

I'll take it, says Carlton Heard.

Carlton Heard

It was like a now or never thing.

Sarah Koenig

That's Carlton. When I asked him why he said yes to the plea, he told me his mother persuaded him they could fight it, that they could appeal, which they did.

Carlton Heard

Because it was, like, what he was saying, like, we just knew that's not nothing that a judge really should be saying. Like, he ain't supposed to be saying and doing none of that.

Sarah Koenig

The Court of Appeals agreed. I got the sense, reading their decision, that the justices were straining to contain their displeasure.

A plea is supposed to be knowingly, intelligently, and voluntarily made. That's the standard. The fact that Judge Gaul participated in the plea, by itself that's not necessarily unconstitutional. But the way Judge Gaul did it, concocting the plea all on his own without even asking the prosecutor or the defense attorney. Then you add in the pressure, the threats, the way he made it obvious he thought Carlton was guilty before even seeing a scrap of evidence.

The only thing Carlton Heard could have knowingly and intelligently concluded, the court said, was that he was unlikely to get either a fair trial or a fair sentence after trial from Judge Gaul. Under those circumstances, they said, the plea was not voluntary. It was coerced. Unconstitutional. They vacated the plea, and then took the extraordinary step of ordering that Carlton Heard's case be reassigned to a different judge. The forcefulness of the Court of Appeals' decision was remarkable.

Then something more remarkable happened. This summer, almost three years after being locked up, Carlton Heard went to trial. This time, in front of Judge John Russo, and he was acquitted of all charges.

So what does this mean for Judge Gaul? For the moment, nothing. I asked Judge Gaul whether he felt he'd screwed up in Carlton Heard's case. His answer, no. To me, he said this isn't a case about an innocent man being railroaded by the system. It's a case that clearly demonstrates how a defendant and his attorney manipulated the system of justice to their benefit and beat a murder case. Attempted murder, actually.

The day Carlton was acquitted, I called Judge Russo. He'd presided over the trial, but he's also the administrative judge for the Cuyahoga County Court of Common Pleas. He's not Judge Gaul's boss, but he is the public face of the court. I caught him on his cell right when he got home from the trial.

Sarah Koenig

Is there any consequence for Judge Gaul because of this?

Judge Russo

I mean, there isn't from me. So I don't, you know, he's a colleague. And so I don't reprimand him or sanction him in any way.

Sarah Koenig

After the verdict, when Carlton Heard was acquitted, Judge Russo had apologized to him. Said, coercion has no place in the system, et cetera. Judge Russo clearly disapproved of how Judge Gaul had handled the case. But now on the phone with me, he was sounding rather mealy about that.

Sarah Koenig

What seems frustrating is that there isn't some automatic, now, review, or some automatic—

Judge Russo

Yeah.

Sarah Koenig

Some investigation, something. I mean, I've seen him do this in his courtroom to other people. And—

Judge Russo

It's wrong. It's wrong. And if any judge is doing that, somebody needs to be made aware of it. I mean, that's it. There's a process. So whatever that process is, it has to be started by somebody.

Sarah Koenig

I would argue that Judge Russo is a somebody. I talked to another Cuyahoga County judge who was outraged by this case. He's a somebody. A couple of attorneys on this case, whom I also spoke to, they're somebodies. The Court of Appeals judges who ruled in this case. What about those somebodies? If any of these somebodies is afraid of reprisal from Judge Gaul, they can even complain anonymously to the Ohio Supreme Court. There's a state board on grievances and discipline that has the authority to investigate and sanction judges, disbar them if necessary.

Judge Gaul's actually been through that process once before in 2010. I won't give you the details, but suffice it to say the Supreme Court justices were appalled by what Judge Gaul had done and said in that case. And then, they gave him a fairly minor reprimand, a six month suspended suspension of his law license, meaning he was able to stay on the bench.

As of right now, I've not heard that anyone has filed a complaint with the Supreme Court against Judge Gaul because of Carlton Heard's case. Nothing about the case has been reported in the local newspaper or on TV. No one's picketing outside his courtroom. So Judge Gaul's not too worried. He's been on the bench for 27 plus years.

I take my role as protecting the peace and dignity of the state of Ohio very, very seriously, and I wasn't elected to be stupid, he said. If he's being lied to, he's not going to sit back and pretend it's not happening. "I wasn't elected six times to be a dumb ass," unquote.

As long as the voters keep voting for him then, he's going to keep on keeping on. And he's right. Yes, there's the appeals court and the discipline board. But really, every six years, it's the voters who have the final say. And most of the voters here, here and everywhere, it's understood that, eh, what do they know?

For decades, they've seen the same Irish and Italian names on the ballot, almost all Democrats. What's a Russo over a Corrigan over a Gallagher? How could you even keep them straight? Mostly, the voters are casting their ballots and then staying far, far away from the felony courthouse. It doesn't touch them, and they don't touch it. Until there's a shock wave. A crime and punishment shock wave that billows out across the city, the county, the country. That's next time, on Serial.

Serial's produced by Julie Snyder, Emmanuel Dzotsi, Ben Calhoun, and me, with additional reporting by Ida Lieszkovszky. Editing on this episode from Ira Glass, Nancy Updike, and Chana Joffe-Walt. Whitney Dangerfield is our digital editor. Research and fact checking by Ben Phelan. Sound design and mix by Stowe Nelson. Music clearance by Anthony Roman. Seth Lind is our director of operations. Serial staff includes Emily Condon, Julie Whitaker, Cassie Howley, and Frances Swanson. Our music is by Adam Dorn and Hal Willner, with additional music from Matt McGinley and Fritz Myers. Our theme song is by Nick Thorburn, remixed by Adam Dorn.

Special thanks to Gipsy Escobar at Measures for Justice, Cullen Sweeney, Cory Schaefer, Zoe Root, and the Justice Programs Office at American University School of Public Affairs, David Brown, Kelly Mitchell, and Julia Laskorunksy at the Robina Institute of Criminal Law and Criminal Justice, Sara Andrews and Scott Schumaker at the Ohio Criminal Sentencing Commission, Brian Hoffman, and the Pretrial Justice Institute.

Finally, the art on our website was made by Adam Maida. He created the mural for this episode, and Moth Studio did the animation. Please check it out at serialpodcast.org. That's serialpodcast.org. Also thanks to Studio Rodrigo who did the web designs. In particular, Ben Averil, Juliette Wang, Or Leviteh and Khoi Uong.